MUHAMMAD FARRUKH IRFAN KHAN, J.---Facts of the case in brief are that father of the petitioner namely Muhammad Amir was serving as Drawing Master with the respondent/department. He was suffering from disease of chronic psychotic syndrome. On 23.04.1997 petitioner's father left the house for attending his official duties but never returned home. His absence was duly reported in the police station but of no avail. Ultimately , on the intervention of the Ombudsman, family pension was allowed to the mother of the petitioner by presuming petitioner's father as dead. The petitioner applied for his appointment under Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 but the respondents have not taken any action thereon.
Being aggrieved the petitioner has filed instant writ petition.
2. Report and parawise comments were called for from the respondents, accordin g to which services of the father of the petitioner was neither regularized nor he died in service or declared invalidated for further service as such the Rule ibid is not applicable to the petitioner's case.
3. Arguments heard. Record perused.
4. The contention of the respondents that father of the petitioner was not a regular employee is contrary to their own office order bearing No, Admn-I-2016/1087 dated 22.02.2016 whereby family pension of the father of the petitioner has been allowed pursuant to the notification of the Government of the Punjab dated 22nd July, 1998 bearing No, FD SR-II-4-109488. It is a matter of common knowledge that family pension is only allowed to a regular and not a contract/ temporary employee. Furthermore, the respondents/ departme nt has failed to bring on record appointment order of the father of the petitioner from which his status could be determined. In the absence of any solid proof and keeping in view grant of family pension to the widow , this Court is of the considered view that father of the petitioner was a permanent employee and the respondents/ department is disputing his status just to deprive the petitioner from his lawful right to claim a job under Rule 17-A of the Rules ibid.
5. Next stance of the respondents/ department was that neither the father of the petitioner died while in service nor he was declared invalidated/ incapacitated for further retention in service as such benefit of the Rule 17-A of the Rules ibid cannot be extended to him. Before proceeding further , it would be advantageous to reproduce Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 which reads as under:- "17-A. Notwithstanding anything contained in any rule to the contrary whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children or his widow/wife, may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child or the widow/wife may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/ examination and/or interview for posts in BS-6 and above: Provided further that one child or widow/ wife of a Government servant who dies while in set-vice or is declared invalidated/ incapacitated for further service shall be provided a job against posts in BS-1 to 5 and the posts of Junior Clerks (BS-7) in the department in which the deceased Government servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child or the widow/wife is otherwise eligible for the post."
6. In the instant case it is an admitted fact that the petitioner's father is missing since the year 1997 and till to date he has not been heard of, therefore, according to Article 124 of the Qanun-e-Shahadat Order he is presumed to be dead by operation of law. Reliance is placed on case reported as State Life Insurance Corporation of Pakis tan v.
Faisal T ahir and 3 others (2011 CLC 1959 ) wherein it has been laid down as under:- "Under Article 124 of Qanun-e-Shahadat Order , the burden of proving that person is alive or not rests on the person who claims refuge under Article 124 of Qanun-e-Shahadat Order . Article 124 of Qanun-e-Shahadat Order is reproduced as under:-- "124. Burden of proving that person is alive who has not been heard of for seven years.--- When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is shifted to the person who affirms it."
9. The Article is equated with Article 108 of the then Evidence Act. The interpretation of the Evidence Act, 1872 came up for resolution before the Full Bench of this Court and the Hon'ble Full Bench of this Court in Punjab and others v . Natha and others (AIR 1931 Lahore 582) held as under:-- "Section 108, Evidence Act, came into operation and raised a presumption that at the institution of the suit he was dead, but no presumption as to the date of his death could or did arise and the date of his death had to be proved by the plaintiffs-appellants in the same way as any other relevant fact in the case."
10. The said issue came up before the Hon'ble Supreme Court of Pakistan in Muhammad Sarwar and another v.
Fazal Ahmad and another (PLD 1987 Supreme Court 1) and it was held as under:-- "The upshot is that Section 108 of the Evidence Act merely creates a presumption that the person who has not been heard for seven years, is dead at the date of the suit. and does not refer in any way as to the date of his death, which has to be proved in the same way as any other relevant fact in the case."
11. From the above said dictum of law it is clear that presumption under Article 124 of the Qanun-e-Shahadat Order is that a person who has not been heard for seven years will be presumed to be dead if the date of his death is claimed that have to be proved by the person who is claiming."
7. Learned Law Officer while referring to the order bearing No. Admn-I-2016/1087 dated 22.02.2016 has laid a lot of emphasis that the petitioner's father was declared retired through the said order as such he cannot claim benefit of the above rule. This contention of the learned Law Officer is repelled for the reasons that the retirement order could only be issued when an employee was performing his duties and on reaching qualifying age of retirement/ superannuation he can be retired from service. In the instant case admittedly , the father of the petitioner disappeared while in service, therefore, in no manner he can be presumed to be retired in service. Even the retirement order of the petitioner's father was issued in pursuance of the notification of the Government of the Punjab dated 22nd July , 1998 bearing No, FD SR-II-4-109-/88 which reads as under:- "I am directed to refer to the subject noted above and to state that if an employee remains missing or unheard of for a period of 12 months to the satisfaction of the department concerned, family pension may be allowed to his/her heirs as admissible under prescribed rules subject to the condition that the missing employees is not facing any disciplinary proceedings under the Punjab Civil Servants ( E & D) Rules, 1975 and provided that:--
(i) The spouse of the missing person, claiming to be entitled to the pensionary benefits of the missing person, shall before such benefits are paid, guarantee, through affidavit or as the pensionary authority may require, the re- payment of pensionary benefits to the missing person if subsequently he appears and makes any claim thereto.
(ii) In the event of the appearance of such missing person, the pensionary authority shall not be responsible for re- payment of any pensionary benefits to the missing person which have already been paid to his spouse/ family members, and the latter shall personally be responsible for satisfying the claim of the missing person."
8. It is thus abundantly clear that after satisfaction of the competent authority about disappearance of petitioner's father the notification dated 22.02.2016 was issued, therefore, it does not matter that improper word "retired" was used in it in place of appropriate status of 'dead'. It is also noticeable from the said notification that it was originally prepared by stating the status of the petitioner's father as "dead" however , for some unknown reasons the signing authority has cut over it and stated the word "retired". Undisputedly , the said notification was issued on disappearance of the petitioner's father .
9. The basic object behind Rule 17-A is to accommodate an unemployed child, wife/widow so as to decrease the miseries of the dependents of a deceased/ invalid employee, therefore, the said Rule is a kind of remedial enactment. Remedial acts have been defined by Crawford on Statutory Construction in the following words:- `Remedial acts are those enacted in order to improve and facilitate remedies already existing for the enforcement of rights and for the redress of wrongs or injuries as well as to correct defects, mistakes and omissions in a former law."
Therefore, narrow consideration that the benefit of above rule could only be extended in favour of a civil servant whose death was natural would defeat the very purpose of this enactment. No distinction can be made between civil death and natural death for applying Rule 17-A as in both cases the bread earner of the family is not there in the scene and the dependents of the deceased have been reduced to the state of destitution. The father of the petitioner disappeared while in service as such he is considered to be dead while in service for the purpose of extending benefit of Rule 17-A of the Rules ibid and the act of the respondents/department for not adhering to the provisions of said rule is declared illegal, mala fide and violative of the fundamental rights of the petitioner .
10. The upshot of the above discussion is that this writ petition is allowed . Respondents are directed to issue appointment order under Rule 17-A of the Rules ibid forthwith.